Bar Association Not An Employer Under POSH Act: Kerala High Court Strikes Down ICC Report & Action Against Senior Male Member
Bar Associations finds no statutory recognition under the Advocates Act, 1961
Justice P.M. Manoj, Kerala High Court
The Kerala High Court has observed on the scope of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), that a Bar Association cannot constitute an Internal Complaints Committee (ICC) under the Act, as it is not an “employer” of advocates, and consequently quashed the ICC report against a senior male member.
The bench noted that under the Advocates Act, 1961, Bar Associations find no statutory recognition, and that their only reference is in the Kerala Advocates Welfare Fund Act, 1980, that too merely for maintaining rolls of advocates already enrolled with the Bar Council of Kerala.
Justice P.M. Manoj thus observed, “As per Section 2(g) of the PoSH Act, an ‘employer’ means the head of a department of an organization, undertaking, establishment, enterprise, institution, office, branch or unit, or such other officer as the appropriate government or the local authority, as the case may be, may, by an order, specify in this behalf. In cases where a workplace is not covered under the above definition, an "employer" is defined further under Sub-section (ii) of Section 2(g) as any person responsible for the management, supervision, and control of the workplace. The authority constituting the employer is essentially the person discharging the contractual obligation with respect to his or her employees. As far as an advocate is concerned, the petitioner's role does not qualify under any of the authorities mentioned in the said provisions”.
“…Hence, the formation of the ICC does not qualify under the mandate of Section 4 of the PoSH Act. Therefore, the constitution of the ICC by the first respondent is itself against the objective and specific requirements of Section 4 of the PoSH Act. Consequently, the report submitted by the ICC (Ext. P8) has no legal basis to stand upon. Accordingly, Ext. P8 should be set aside”, the bench further noted.
Senior Advocate S. Sreekumar appeared for the petitioner and Advocate K. Siju appeared for the respondent.
The matter pertained to a complaint by a 24-year-old woman advocate against a 76-year-old senior male member, both members of the Kollam Bar Association. The alleged incident of sexual harassment took place on 14-06-2024, when the complainant visited the advocate’s premises in connection with notarisation work.
Subsequent to which a police complaint was lodged, leading to registration of an FIR under Sections 354 & 354A IPC, and a POSH complaint before the Bar Association on 15-06-2024.
Acting on the complaint, the Bar Association referred the matter to its Internal Complaints Committee (ICC), which conducted an inquiry and submitted its report. Meanwhile, the Association suspended the advocate’s membership pending action.
Therefore, the advocate challenged both the ICC’s jurisdiction and the suspension before the High Court.
The central question was whether a Bar Association can be treated as an “employer” entitled to constitute an ICC under Section 4 of the POSH Act, especially when: advocates are not employees of the Association; the alleged act occurred at the advocate’s residential/office premises, and the Association functions primarily as a professional body of members, not an employer-run establishment.
On this interpretation, the Court while disposing of the petition held that the very constitution of the ICC by the Bar Association was contrary to Section 4 of the POSH Act, rendering its proceedings legally unsustainable.
Cause Title: E. Shanavas Khan v. The Kollam Bar Association [Neutral Citation: 2026:KER:6220]
Appearance:
Petitioner: Senior Advocate S. Sreekumar, S.Navas, K.Vijayan, Namitha Rajesh, Nithya V.D., Advocates.
Respondents: K.Siju, T.S.Maya, C.M. Mohammed Iquabal, S. Abhilash, Anjana Kannath, Mariya Jose, Istinaf Abdullah, Shehsad A.S., P.Abdul Nishad, Dhilna Dileep, Thasneem A.P., K.A.Sunitha, Advocates.